While noting that successful constitutional reform would require bipartisan support, a United Nations team has advised government that the process is only likely to succeed if it is “inclusive and participatory,” meaning the involvement of the opposition and other key stakeholders every step of the way.
As a result, the Constitutional Assessment Team from the United Nations Development Program (UNDP) and the United Nations Department of Political Affairs (DPA) in its report to government has identified the draft bill for the Constitutional Reform Commission as a key test of whether bipartisan support for the process truly exists.
“If it passes by one vote along party lines that will be a worrying sign for the process going forward,” the report, seen by Stabroek News, states, before advising that consultation, negotiation, and compromise on the bill at the earliest stages will be critical to its unanimous passage in the National Assembly.
The draft bill, which had been sent to the Attorney General for review, is presently at the Office the Prime Minister, having been returned with a memorandum detailing necessary changes.
Nagamootoo told Stabroek News earlier this month that the establishment of the constitutional reform commission was necessary to move the reform process forward as it provides the legal framework.
The team, which visited Guyana in February, was tasked with advising on opportunities, risks, and considerations for UN constitutional support to the Government of Guyana and other stakeholders, including advice on possible programmatic support by the UN.
Following their consultations with various stakeholders, the team submitted a report to Nagamootoo, in which it identified the powers of the president, the impact of the limited oversight powers of the National Assembly, and vertical control of party leadership over MPs on a significant power sharing framework and checks and balances among the branches of government as being among the areas that were raised most during its interviews. It said too that several electoral issues were identified as needing reform, such as the closed list Proportional Representation system, which in the view of many makes MPs accountable to their party instead of constituents. It said too that the provision allowing the party leader to dismiss and replace sitting MPs undermines the effectiveness of the Parliament as a checking mechanism and an institution that represents the people.
The team argued that the process of constitutional reform can provide not just an opportunity to improve governance and accountability but also an opportunity for nation building, stronger social cohesion, civic education and citizen engagement.
At the same time, it acknowledges that the reform process could fail to deliver meaningful changes due to a lack of support from either the government or opposition party, or both. It noted that the 1999-2001 reform process resulted in numerous constitutional amendments – passed with bi-partisan support – but none of which addressed “the infirmities related to executive power and lack of accountability to the people.” As a result, it said there is risk that in a new process both parties might agree to constitutional reform “at the margins,” but in the end fail to pass any of the most needed amendments, thereby maintaining the status quo.
The team added that a related risk is that either the government or opposition supports reform but the other party blocks it in the National Assembly, where the passage of constitutional amendments would require the support of two-thirds of the House. It noted that during the mission senior representatives from APNU, the AFC, and PPP/C all stated their support for constitutional reform in principle. “Despite these assurances, however, there are many ways mistrust between the parties could undermine bipartisan support and thus successful reform,” it pointed out.
Public priority
The nine-page report stresses that it is crucial that all political parties recognize the importance of constitutional reform as a matter of good governance and public priority, rise above party politics, and work together to deliver on promises both parties have made repeatedly over the years to the Guyanese people.
It said successful constitutional reform, especially on some of the issues identified as most important by Guyanese stakeholders, will require bipartisan support in Parliament and perhaps the public at referendum.
“This process will only likely succeed, therefore, if it is inclusive and participatory. In this regard “inclusive” refers to inclusion of the opposition and other key stakeholders – including civil society – at each stage of the process through consultation, compromise, and credit sharing. That does not mean that both sides must agree on every issue – but they must be willing to engage in genuine and sincere dialogue, negotiation, and compromise, with an eye towards reaching consensus on the constitutional matters that are most important to the Guyanese people,” it added.
According to the report, in addition to the bipartisan support for the draft bill, the composition of the proposed reform commission would also be an important test.
“A commission… should be independent and reflect the diversity of Guyanese society,” it said, while noting that key parties and stakeholders must perceive the reform body as representing and reflecting their interests.
The report explains that in other countries, constitutional reform bodies have benefited greatly from including civil society actors and not just representatives of political parties. “Strong consideration should be given to providing civil society actors a “seat at the table” and not just consulting with them outside the official constitution making body,” it states. It then warns that “a commission, may fairly represent political and civil components of Guyanese society, but if the commission’s decision making process can be dominated by a single party or interest, the legitimacy of the entire constitutional reform process may be undermined.”
As a result, the team recommended as a possible solution a requirement that the President consult with the Leader of the Opposition in the appointment of commissioners that are not nominated from a clearly identifiable constituency. Consequently, it said prospective members of a commission should have three qualities: representation of a particular sector; political balance; and expertise.
It was further recommended that the commission utilize a consensus method for decision making as majority decision making can lead to a single party or interest dominating the process.
“If Guyana were to use a constitutional commission as part of the reform process, consensus decision making would ensure that recommendations provided to the parliament already enjoyed bipartisan and widespread popular (civil society) support,” it noted.
The team also made several recommendations on ways to ensure that civil society and the Guyanese public at large participate in the process.
The official constitution making bodies have an affirmative obligation, it notes, to seek the public’s views, which can be done through a wide range of options, including hearings, focus groups, conferences, surveys, interviews, the Internet, text messaging, and written submissions, all of which can be organized geographically or thematically, or by targeting specific interest groups.
Additionally, it said, officials engaged in constitutional reform are obligated to facilitate public participation through means such as adequately educating/ informing the public on key matters before consultation so they are better prepared to contribute; and ensuring all citizens have a fair opportunity to contribute and ensuring the process is sufficiently transparent so that people are aware of what is happening at each stage of the process and are confident that their voices are heard.
This public participation can occur at various stages of the process, the report said even as it recommended that a time frame be established in order for the process not to needlessly drag on. “Constitutional reform requires enormous resources and organization. Developing a strategic plan and budget at the outset–before research, civic education, consultation, negotiation, and drafting begins—can help the process run smoothly, stay on schedule, and achieve a successful outcome,” it explained, while advising that Guyana should carefully consider the amount of time that is likely to be needed for adequate public participation as well as research, deliberation, negotiation, and agreement by the constitutional reform bodies.
A Secretariat to handle administration and logistics as well as a communication strategy, along with a media/outreach unit have also been identified as “crucially important.”